The opinion of the court was delivered by: Justice Kuehn
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
Appeal from the Circuit Court of Madison County.
Honorable J. Lawrence Keshner, Judge, presiding.
This case examines what happens when counsel is blind to his duty of undivided loyalty and insists upon representing several people with interests that unmistakably conflict. It underscores why the representation of people whose interests are at odds is a decidedly bad practice that lawyers should try to avoid.
After a jury trial, defendant was found guilty on five separate counts of first-degree murder. He now serves life imprisonment. His appeal raises the issue of the conflicts of interest his lawyer labored under during that trial.
The conflicts were apparent before trial began. The State sought counsel's disqualification and removal because of them. Prosecutors argued that counsel could not effectively champion defendant's interests because he represented the interests of three prosecution witnesses. Their arguments predicted that counsel's conflicting representations would taint his performance and necessitate another trial. Today, those concerns prove prophetic as counsel's contemporaneous representation of witnesses for the prosecution dictates a new trial. We reverse and remand.
Thomas Hildebrand was defendant's lawyer, a role that carried a duty to advance defendant's interests with unwavering allegiance. His professional undertaking required the confrontation of Robert Lockett, Michael Lockett, and Travon Watt, witnesses for the prosecution. Each of these witnesses faced future uncertain punishment for previously adjudicated guilt on unrelated cases, and each hoped to gain the State's favor in return for testimony.
These three witnesses shared something else in common. Each had hired Hildebrand to advance their interests on the very cases that awaited sentencing and provided impetus for their testimony against defendant.
This uncommon circumstance was addressed by the State's motion to disqualify. At the hearing on the motion, the State argued that Hildebrand's conflicts were "glaring." He responded:
"MR. HILDEBRAND: Well, number one, since it's glaring I am amazed that the State waits until this date to tell me about it.
Number two, I don't represent Robert Lockett. I did represent him at one time. I sure as heck don't represent him now ***.
Number three, Michael Lockett *** is being sentenced this afternoon. That doesn't have anything to do with Michael Coleman. I am unaware of anything.
Travon Watt pled guilty already and if I do recall he has already been sentenced *** [and] that's got nothing to do with this case. Those cases are done." *fn1
Hildebrand's protestations notwithstanding, his conflicts were clearly disabling. But rather than remove Hildebrand, the Judge turned to defendant and asked if he perceived any problem:
"THE COURT: Mr. Coleman, *** your attorney has got a conflict of interest here because he has been representing some of these people who are going to testify or may testify in this trial, those being Robert Lockett, Michael Lockett, and Travon Watt. Do you have any problem with that? ***
DEFENDANT COLEMAN: No sir. As long as nobody harm [sic] me.
DEFENDANT: No, sir." (Emphasis added.) The Judge accepted this and Hildebrand remained on the case.
On the eve of trial, Hildebrand's conflicts were revisited. When the State asked the Judge to reconfirm defendant's willingness to waive Hildebrand's conflicts, the Judge turned to Hildebrand:
"THE COURT: All right. Has your client been afforded a list of witnesses?
MR. HILDEBRAND: Yes, your Honor. We have gone over the witness list several times.
THE COURT: Does your client understand the problem with the fact that you have in the past and presently represent some of these witnesses?" Hildebrand, rather than responding to the Judge's question, stated:
"MR. HILDEBRAND: Only person *** who I am still listed as attorney of record for is Michael Lockett ***. If that's going to be a problem, if the Court will grant me leave to withdraw *** someone else can handle the sentencing. *** Everyone else is a prior client of mine.
Mr. Coleman is aware of that. We have discussed all these people
THE COURT: Do you understand the problem here and possible conflict your attorney has and [sic] as he just put it on the record, just laid it on the table[?] Do you understand that possible problem?
DEFENDANT COLEMAN: Yes, sir.
THE COURT: Are you willing to waive any problem or use the big words `conflict of interest?' Do you want to do that?
DEFENDANT COLEMAN: Yes, sir." (Emphasis added.)
The Judge accepted this and Hildebrand remained on the case. Hildebrand entered trial with his obligation to champion Michael Lockett's interests intact. Everyone, including defendant, accepted Hildebrand's view that his duty of undivided loyalty allowed the representation of Lockett, provided Lockett's interests were abandoned prior to his testimony. And Travon Watt was declared by implication to be a past client.
Travon Watt testified. His testimony refuted defendant's claim that he did not know his co-defendant Williams. Watt testified that defendant and Williams were fellow gang members who routinely rode in a green minivan, the type of vehicle seen leaving the murder scene. Watt acknowledged prior convictions for "drugs and weapons and burglary." He was then asked:
"Q. And any other charges?
Q. And have you received any offers in return for your testimony regarding that burglary charge?
Hildebrand represented Watt on the pending burglary. He also represented Watt on a pending retail theft charge. Watt failed to disclose the pending theft, implying that a burglary charge was all that jeopardized his freedom. Watt was not asked about his interest in the pending theft. There was no inquiry into his motives for testifying. There was no effort at impeachment.
In April of 1995, Watt and Hildebrand appeared for Watt's sentencing. Watt, a convicted felon several times over, received three-year concurrent prison terms for the 1993 burglary, the 1994 retail theft committed while on bond, and a 1995 burglary (charged after his testimony). The State sought a four-year prison term when Watt entered his burglary plea in 1993. Watt remained on bond after the plea, committed additional crimes, testified against defendant, and received less punishment for three crimes than he faced when the original burglary plea was entered.
Robert Lockett testified. A formal agreement in return for his testimony allowed him to remain free on bail pending sentencing and promised a six-year prison sentence for home invasion.
Robert Lockett told the jury that he, his brother Michael, and defendant were cohorts in crime. One of the crimes they had planned to commit was an armed robbery of the same victims that were robbed and killed in this case. It was a plan frustrated by Michael Lockett's arrest for an unrelated crime before the robbery could take place.
Robert Lockett testified that in Michael's presence defendant confessed to the murders. He related how the jailhouse confession came to pass:
"A. Mr. Hildebrand was representing me at the time. He pulled all of his clients out for a conference.
Q. Let me get this straight now. Who was your ...